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Old 08-08-2019, 03:02 PM
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End qualified immunity. Or at least significantly curtail it.


It is time to do something about qualified immunity, the concept that unless there is a clearly defined right not to be hurt by an official in your jurisdiction in a specific manner, the official is immune from prosecution or even civil suit as a consequence of their action. Since QI in its current state is a result of jurisprudence, it will require a law being written to adddress this (or a future Supreme Court willing to reverse itself in some future case - which seems unlikely), so congress will need to step up. Unless we address this, it will be hard to improve policing in the US - how do you change policy and behavior when it is so difficult to litigate the consequences of incorrect, or dangerous, or downright incompetent behavior ?
Unlike other issues with which the US is wrestling, it won’t require changing the bill of rights (or changing how many interpret the bill of rights, depending on your viewpoint - and not whqt this thread is about). There is even some reason to hope that support for this might be found within different parts of the political spectrum. And it would save lives.

Here, for example, a pretty cogent article on the subject from a source not well known for their “Black lives matter” viewpoint: https://www.nationalreview.com/2019/...-terrible-law/
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Old 08-08-2019, 03:13 PM
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Originally Posted by Isosleepy View Post
It is time to do something about qualified immunity, the concept that unless there is a clearly defined right not to be hurt by an official in your jurisdiction in a specific manner, the official is immune from prosecution or even civil suit as a consequence of their action. Since QI in its current state is a result of jurisprudence, it will require a law being written to adddress this (or a future Supreme Court willing to reverse itself in some future case - which seems unlikely), so congress will need to step up. Unless we address this, it will be hard to improve policing in the US - how do you change policy and behavior when it is so difficult to litigate the consequences of incorrect, or dangerous, or downright incompetent behavior ?
Unlike other issues with which the US is wrestling, it won’t require changing the bill of rights (or changing how many interpret the bill of rights, depending on your viewpoint - and not whqt this thread is about). There is even some reason to hope that support for this might be found within different parts of the political spectrum. And it would save lives.

Here, for example, a pretty cogent article on the subject from a source not well known for their “Black lives matter” viewpoint: https://www.nationalreview.com/2019/...-terrible-law/
Negligence (and incompetence) should trump everything else. Like if you have to sign an indemnification for someone, negligence is generally not included.

As I understand it.
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Old 08-16-2019, 07:32 PM
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In my opinion the federal government doesn't have the power to do that. Can you point to an enumerated power that allows the federal government to strip the state of its sovereign immunity for negligent circumstances?

An argument might be made incorporating the due process clause through the Fourteenth Amendment. First Congress would need to pass a law explicitly invoking that power, then the DOJ would need to win the anticipated Supreme Court challenge by Georgia. Congress is so stuck up they won't even try to vote a law if they aren't confident it will hold up to a court challenge, even if they think it should. I just don't see the Court expanding substantive due process, even upholding it is dangerous as the two new Justices are known for their originalism and textualism.

You may have better luck lobbying the state of Georgia.

~Max
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Old 08-16-2019, 09:07 PM
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Individual immunities are governed by the law of the claim, so for civil rights actions it is federal (common) law.
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Old 08-17-2019, 06:35 AM
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Wouldn't the federal government have a right to over-ride state law regarding this under the Constitutional right to petition for redress of grievances? It could be argued that a government granting immunity to its agents violates this right. That would be enumerated in the First Amendment.

Last edited by GreenHell; 08-17-2019 at 06:37 AM.
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Old 08-17-2019, 04:02 PM
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In my opinion the federal government doesn't have the power to do that. Can you point to an enumerated power that allows the federal government to strip the state of its sovereign immunity for negligent circumstances?
Umm, may I point out that if the government can violate civil rights and then claim immunity, that de facto makes those same civil rights worthless? Just saying, this creates an opening. If the government, can, say, violate habeus corpus simply due to negligence, and claim they have immunity, then they can in turn violate it as much and as often as they like with no actual consequences. This could easily devolve into that civil right being de facto ignored by the government.
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Old 08-19-2019, 09:47 AM
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Umm, may I point out that if the government can violate civil rights and then claim immunity, that de facto makes those same civil rights worthless? Just saying, this creates an opening. If the government, can, say, violate habeus corpus simply due to negligence, and claim they have immunity, then they can in turn violate it as much and as often as they like with no actual consequences. This could easily devolve into that civil right being de facto ignored by the government.
Right. Until the Congress enacted a the Habeas Corpus Act of 1867 (sess. ii, chap. 28, 14 Stat. 385) under its Fourteenth Amendment powers, the states were free to grant or deny habeas corpus as they wished. There was one exception, an 1863 act that established a procedure for federal officials and officers to petition for federal jurisdiction - not that Confederate states followed that law. Even today, you do not have a constitutional right to sue a state for violating habeas corpus. The state retains immunity under the Eleventh Amendment. You have a statutory right under 28 U.S.C. § 2254, and Congress derives the power to enact that statute through the Fourteenth Amendment.

~Max
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Old 08-19-2019, 10:27 AM
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Wouldn't the federal government have a right to over-ride state law regarding this under the Constitutional right to petition for redress of grievances? It could be argued that a government granting immunity to its agents violates this right. That would be enumerated in the First Amendment.
As far as I know, the right to petition does not affect immunity at all, certainly not state immunity. The government is not required to provide redress, or even to respond at all. If they do provide redress, for example monetary redress, that would count as the state or federal government "settling" with you. You may petition the federal legislature or the state for relief in the form of a private law, and you may bring suit for injunctive or declaratory relief under your statutory rights, if applicable.

~Max
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Old 08-19-2019, 12:29 PM
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Let's start with something relatively simple, like if an LEO violates the right of unarmed black people to not be shot in the face (as an example) or civil rights of a prisoner they lose their license to be an LEO. May not be as good as losing qualified immunity but it would be a start.
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Old 08-20-2019, 11:54 AM
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We can do away with the entire notion of getting rid of qualified immunity entirely as a non-starter. It's never going to happen because it exists for very good reasons and anyone advocating for doing away with it entirely can't possibly be fully comprehending the consequences. If you want a society where government can be held accountable by legal action then you have to have a substantial threshold for those actions to insure governments and officials are able to function without constant fear of being sued.

As far as reforming how QI functions or is applied, well like most complex issues it's all in the details. Seems to me a lot could be accomplished simply by refining how terms like "clearly established" ,"good faith" and "reasonable" are defined and applied in the QI context. Wouldn't have to come from SCOTUS but of course that would be the quickest and most direct way. And Justices on both "sides" have expressed skepticism about how QI is applied so not only do you have votes but multiple ideological and legal arguments for reform.

As far as the state vs federal issues as noted by others it can get complicated. And, as mentioned, the 1st Amendment Right to Petition guarantees the right to bring suit but that's about it in this context. But because of statutes like 42 USC § 1983 and Constitutional issues a lot of suits that concern QI are going to involve potential or necessarily Federal jurisdiction. So while it may be possible that the Federal government cannot force a state to abrogate its sovereign immunity in some circumstances involving purely state law claims, that may not have much of a practical effect if Federal statutory and Constitutional claims are fairly readily available.

But if you really want to enact change for the underlying issues that a lot of people think QI protects/exacerbates/encourages then you'd probably get better results focusing on changing the culture of government in general or whatever sub-group specifically. There's a lot of social science research out there on that topic and it's complicated as well but to the extent that you have a governmental unit that repeatedly engages in or tolerates the behavior that leads to such suits, the "culture" (once again, complicated) is usually a pretty significant causal factor.
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Old 08-21-2019, 08:46 PM
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Originally Posted by Saint Cad View Post
Let's start with something relatively simple, like if an LEO violates the right of unarmed black people to not be shot in the face (as an example) or civil rights of a prisoner they lose their license to be an LEO. May not be as good as losing qualified immunity but it would be a start.
If you move this to a separate thread, I am willing to argue against the proposition as written.

~Max
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